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09/12/97 PEOPLE STATE ILLINOIS v. JUAN FALCON

September 12, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JUAN FALCON, PLAINTIFF-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 94 CR 22252. Honorable Joseph G. Kazmierski, Judge Presiding.

Released for Publication November 10, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Greiman, P.j., concurs, and Theis, J., concurs in part and dissents in part.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Defendant, Juan Falcon, was charged by indictment with three counts of aggravated criminal sexual assault and three counts of aggravated criminal sexual abuse. Following a jury trial he was found guilty of all counts and the abuse convictions were merged by the trial court with the assault convictions. Subsequently, defendant was sentenced to three terms of 25 years imprisonment in the Illinois Department of Corrections. The 25-year terms were ordered to run consecutively pursuant to the mandatory sentencing provisions of section 5-8-4(a) of the Unified Code of Corrections. 730 ILCS 5/5-8-4(a) (West 1996) (hereinafter, we refer to the Unified Code of Corrections as "the Code"). Defendant now appeals both his conviction and sentence.

On appeal, defendant raises 5 issues for our review: (1) whether the trial court improperly allowed the admission of so-called "other crimes" evidence; (2) whether the evidence produced at trial was sufficient to support his convictions; (3) whether his trial counsel was so ineffective as to deprive him of his fundamental right to due process; (4) whether mandatory consecutive sentences pursuant to the provisions of section 5-8-4(a) of the Code were improper; and (5) whether his combined sentence of 75 years imprisonment is excessive. For the following reasons, we affirm defendant's convictions, but remand the case for resentencing. Consistent with Illinois Supreme Court Rule 23, we publish our judgment in the form of an opinion only with regard to defendant's sentencing issues.

[THE FOLLOWING MATERIAL IS NON-PUBLISHABLE PURSUANT TO SUPREME COURT RULE 23]

[THE PRECEDING IS NON-PUBLISHABLE PURSUANT TO SUPREME COURT RULE 23]

Although defendant has raised the issue of sentencing on appeal, we note that defendant has failed to file a post-trial motion challenging his sentence in the trial court. The State argues that this omission constitutes a waiver of any challenge defendant may now wish to bring concerning his sentencing. For support, the State relies upon the amended terms of section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c) (West 1996)) which provides that a defendant "shall" file a post-sentencing motion if he wishes to preserve sentencing issues for further appeal. According to the State, our supreme court's decision in People v. Lewis, 158 Ill. 2d 386, 634 N.E.2d 717, 199 Ill. Dec. 664 (1994), which held that the failure to file a post-sentencing motion does not result in waiver, is no longer controlling following the General Assembly's amendment to section 5-8-1(c).

We reject the State's waiver argument, as have the better-reasoned appellate decisions to consider the issue. See e.g., People v. Williams, 285 Ill. App. 3d 394, 673 N.E.2d 1169, 220 Ill. Dec. 748 (1996); People v. Porter, 285 Ill. App. 3d 50, 52, 676 N.E.2d 1, 221 Ill. Dec. 661 (1996); People v. Cook, 279 Ill. App. 3d 718, 726, 665 N.E.2d 299, 216 Ill. Dec. 239 (1995). But see People v. Rogers, 286 Ill. App. 3d 825, 677 N.E.2d 13, 222 Ill. Dec. 200 (1997); People v. Reed, 282 Ill. App. 3d 278, 280, 668 N.E.2d 51, 217 Ill. Dec. 866 (1996); People v. McCleary, 278 Ill. App. 3d 498, 501, 663 N.E.2d 22, 215 Ill. Dec. 272 (1996); People v. Moncrief, 276 Ill. App. 3d 533, 535, 659 N.E.2d 106, 213 Ill. Dec. 476 (1995). Even were we to accept the State's waiver argument, however, we note that even those cases relied upon by the State have acknowledged that whether a defendant's sentence is properly imposed is generally a question which concerns the defendant's fundamental constitutional right to liberty. As such, even if waiver were to apply, we would address defendant's sentencing arguments under our plain error doctrine. See People v. Ritchey, 286 Ill. App. 3d 848, 677 N.E.2d 973, 222 Ill. Dec. 439 (1997); Reed, 282 Ill. App. 3d at 281; McCleary, 278 Ill. App. 3d at 501-02; Moncrief, 276 Ill. App. 3d at 535.

Defendant first argues that his consecutive sentences, which the trial court indicated were mandatory under the terms of section 5-8-4(a) of the Code, were not proper under that section. This section provides for mandatory consecutive sentencing for each offense of aggravated criminal sexual assault when a defendant: (1) commits the assault in connection with other criminal acts, (2) those other acts also resulted in convictions for which defendant is being sentenced, and (3) when all the acts are together part of a "single course of conduct during which there was no substantial change in the nature of the criminal objective." Consecutive sentences are not appropriate under the terms of the statute unless the defendant's convictions meet these requirements. See generally People v. Williams, 263 Ill. App. 3d 1098, 638 N.E.2d 207, 202 Ill. Dec. 561 (1994).

Defendant notes that the indictments under which he was charged did not indicate, either expressly or impliedly, that his criminal acts were committed as part of a "single course of conduct." Indeed, our examination of the indictments shows the State failed to allege defendant's crimes occurred at any specific point in time whatsoever. Rather, the indictments merely state that defendant molested J.M. in three different ways over a period of several months.

J.M. testified that defendant sometimes inserted his finger into J.M.'s anus before engaging him in either oral or anal sex, but J.M.'s testimony did not indicate this was always the case. J.M.'s testimony appears to indicate that, sometimes, defendant simply had oral sex with J.M.; other times, defendant simply had anal sex. During closing argument the prosecutor stated that the evidence established each of the allegations in the indictments by proving defendant molested J.M. in the following ways: (1) penetration by defendant's finger into J.M.'s anus, (2) penetration by defendant's penis into J.M.'s mouth, and (3) penetration by defendant's penis into J.M.'s anus.

At oral argument before this court, the State recognized the lack of evidence indicating precisely when and how often defendant molested J.M. Moreover, although the evidence established that defendant committed more than eight acts of criminal sexual assault against J.M., the evidence was clear that no more than two of these acts occurred during any "single course of conduct." See People v. Bole, 155 Ill. 2d 188, 194, 613 N.E.2d 740, 184 Ill. Dec. 423 (1993) (sexual assault offenses were not committed as part of single course of conduct when committed on different days with substantial interruptions of time between them). The trial court's decision to sentence defendant to three consecutive terms was ...


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